Plaintiff filed this action pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act, asserting various causes of action arising out of his arrest and prosecution under S.C. Code § 16-13-180(A) for receiving and possessing stolen goods "which he had reason to believe were stolen." (Dkt. No. 26-4). Defendants moved for summary judgment, arguing inter alia that Plaintiff's constitutional claims failed because there was probable cause to support Plaintiff's arrest and prosecution. (Dkt. No. 26-1). Plaintiff opposed the Defendant's summary judgment motion, asserting that there was no probable cause to support the charge because an element of the offense was that the accused must have "received the goods" with "fraudulent intent." (Dkt. No. 34 at 12-13, citing State v. White, 44 S.E.2d 741, 742 (S.C. 1947)).

This matter was referred to the Magistrate Judge for pretrial handling. The Magistrate Judge issued an Report and Recommendation ("R & R") on May 27, 2015 recommending that the Defendants' motion for summary judgment be granted as to Defendants Cribb and the Georgetown County Sheriff's Office and denied as to Defendant Sarvis. (Dkt. No. 40). In making that recommendation, the Magistrate Judge found that the federal claims, which involve causes of action for false arrest and malicious prosecution under 42 U.S.C. § 1983, "require a showing that Plaintiff's arrest and prosecution were without probable cause." (Id. at 8-10). The Magistrate Judge, in reaching the conclusion that there was no probable cause for Plaintiff's arrest and prosecution, stated that "[d]uring the time period at issue, it was certainly well established that the law regarding receiving stolen goods" under South Carolina law required a showing that the accused "knowingly received stolen goods" and "did so with a fraudulent intent." (Id. at 10-11 n. 6).

Plaintiff filed no objections to the R & R. Defendant Sarvis objected to the recommendation that his motion for summary judgment be denied on both the federal constitutional and state tort claims. (Dkt. No. 43). Defendant Sarvis argued that the Magistrate Judge relied on an outdated version of the relevant South Carolina statute, S.C. Code § 16-13-180. He maintains that under the amended version applicable to this matter there was probable cause to support the arrest and prosecution and that even if there was not probable cause, he is entitled to qualified immunity. (Id. at 2-9). Plaintiff filed a response to Defendants' objections and Defendants filed a reply. (Dkt. No. 45, 48).

Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996).

Factual Background

The Magistrate Judge ably set forth the undisputed factual record in this matter. (Dkt. No. 40 at 2-7). Plaintiff, who is in the scrap metal business, was advised by Defendant Sarvis, a deputy with the Georgetown County Sheriff's Office, in March 2011 that he should be on the lookout for stolen brass vases which had been taken from a local cemetery. (Dkt. No. 26-2 at 21). In July 2011, an employee of Plaintiff's, unaware of the communication between Defendant Sarvis and Plaintiff, purchased eight brass vases. The following day Plaintiff noticed the vases, learned his employee had purchased them, and directed that no further vases be purchased. (Id. at 28). Plaintiff then took the vases into an area so they would not be processed but did not alert Defendant Sarvis that he had possession of them. (Id. ). Plaintiff acknowledged he knew the vases were stolen and that he continued to possess them. (Dkt. No. 34-1 at 4).

Two days after Plaintiff became aware of the stolen merchandise, the seller of the vases returned and attempted to sell Plaintiff's business additional brass vases. Plaintiff refused to purchase them and contacted Defendant Sarvis with information on the seller. (Dkt. No. 26-2 at 33). The seller was apprehended and prosecuted. (Dkt. No. 34-3).

Additionally, Defendant Sarvis investigated Plaintiff for his knowing possession of stolen merchandise. In a recorded interview with Defendant Sarvis, Plaintiff acknowledged that he "knew [the vases] were stolen" and "I knew we weren't supposed to have them. I understand that was wrong, and I understand I probably should've called you when I realized we had them...." (Dkt. No. 34-1 at 3). Plaintiff went on to state during the investigative interview that when the seller of the stolen vases returned, "I said okay, here's my chance to make everything right, because I, I didn't want the vases." (Id. at 4).

Defendant Sarvis sought a warrant for Plaintiff's arrest from a state magistrate under S.C. Code § 16-13-180(A). Sarvis' affidavit in support of the warrant stated that Plaintiff had unlawfully maintained possession of the vases which he "he had reason to believe were stolen." (Dkt. No. 26-4). The affidavit did not address the issue of whether Plaintiff was aware that the vases were stolen at the time they were purchased. A state magistrate issued a warrant for Plaintiff's arrest and he was subsequently arrested and spent a night in jail before he was released on bail. He was then tried in magistrate's court before the same magistrate who issued the warrant and was acquitted.

Plaintiff argues that Defendant Sarvis failed to provide the state magistrate with material facts which allegedly would have negated the probable cause finding. Specifically, he alleges that the magistrate was not informed that Plaintiff was unaware the goods were stolen at the time they were received by Plaintiff's business, which Plaintiff argues is a material element of the state offense. All parties recognize, as did the Magistrate Judge, that if probable ...

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